City of Galveston v. Kenner

• Decision Date: 03 May 1922
• Docket Number: (No. 3026.)
• Citation: 240 S.W. 894
• Parties: CITY OF GALVESTON et al. v. KENNER.
• Court: Texas Supreme Court

240 S.W. 894

CITY OF GALVESTON et al. v. KENNER.

(No. 3026.)

Supreme Court of Texas.

May 3, 1922.

Error to Court of Civil Appeals of First Supreme Judicial District.

Mandamus by E. B. Kenner against the City of Galveston and others. Judgment granting writ affirmed by the Court of Civil Appeals (193 S. W. 208), and defendants bring error. Judgments of Court of Civil Appeals and of trial court affirmed.

M. H. Royston and P. A. Drouilhit, both of Galveston, for plaintiffs in error.

"Stewarts," of Galveston, for defendant in error.

CURETON, C. J.

This is an action for mandamus, instituted by defendant in error E. B. Kenner against the city of Galveston and the members of its board of commissioners, to compel them to establish direct, separate water service to distinct apartments in a building located in the city belonging to the defendant in error. The mandamus was awarded by the trial court. Upon appeal by plaintiffs in error, the judgment was affirmed by the Court of Civil Appeals (193 S. W. 203), and writ of error was granted by this court.

The trial judge filed conclusions of fact as follows:

"Dr. Kenner owns two lots in the city at the northwest corner of Twenty-Fifth and Postoffice streets, 120 feet on Twenty-Fifth street and 42 11/12 on Postoffice street. He first put up the building on the alley used as a theater. The city installed a water meter in it at his request. There is no complaint as to this. He afterwards constructed a double brick building on the rest of the lot, dividing it into five or six storehouses or shops, and adapting the upper part for use as a hotel. The premises have ever since been so rented and are now so occupied by his tenants. The city has installed but one water meter for this entire double brick building and refuses to install more, though requested both by Dr. Kenner and his tenants. Any expression of willingness on the part of the city to install other meters in the evidence refers merely to tapping the meter already in use, and not to meters connecting with the mains. Such meters would not afford the relief required, for the city still insists on its right in such case to look exclusively to the owner and to collect for the whole amount of water used from him, leaving him to reimburse himself, pro tanto, from his several tenants — any one of whom by allowing water to run wastefully might thus impose a burden on him over which he would have no control. Under present conditions, tenants all agreeing to pay water rates, he simply has to divide up arbitrarily the whole amount between them, naturally causing great dissatisfaction and rendering the premises undesirable to tenants. The system always pursued in Galveston previous to the time the ordinance of March 5, 1914, went into effect, was that of furnishing meters to all tenants of distinct tenements, reading the meters and collecting directly from the occupants."

The city of Galveston owns and operates the only waterworks system in the city, which system is the only source of water supply.

The undisputed testimony of Dr. Kenner shows that his property, located in the city of Galveston, consists of one two-story brick building, the upper story of which, consisting of twenty-nine rooms, is rented as a hotel, while in the lower story there are five different apartments or places of business, two of which are occupied by restaurants, one by a drug store (with a soda fountain), and the remaining two by a shoe shop and a saloon, respectively. These five stores and the hotel are supplied with water through one meter.

It is apparent from the foregoing that the uses made by the respective tenants of the various separate stores, and that portion of the building used as a hotel, require varying quantities of water for each tenant. The evidence shows that under the system now in vogue it is almost impossible for the owner to handle his property, that it creates confusion between him and his tenants, and between the tenants themselves.

The purpose of this suit is to require the city of Galveston to install a separate and distinct meter and water service for each of the stores and for the hotel. The defendant in error requested the installation of this service, but plaintiffs in error declined to comply with this request, although defendant in error offered to pay them therefor. The refusal of...